PO (Nigeria) v Secretary of State for the Home Department

In asylum and human-rights country-guidance cases, a tribunal must apply anxious scrutiny to background material. It acts unlawfully if it relies decisively on a disputed and untested official communication to reject relevant expert and objective evidence without a rational basis.

A trafficking victim need not prove by personal evidence that the trafficker operated within a gang where the applicable guidance recognises that trafficking will probably involve a collection of individuals unless there is evidence of a sole trafficker. The tribunal must assess all preserved findings, the victim’s accepted evidence and uncontradicted objective material. A country-guidance headnote must accurately reflect the determination and cannot add a burden absent from the guidance itself.

The appellant, a Nigerian victim of trafficking, appealed from the country-guidance determination of the Asylum and Immigration Tribunal, [2009] UKAIT 00046. Earlier proceedings had preserved findings that she was vulnerable, lacked family support in Nigeria, and faced a real risk of persecution from her former trafficker in her home town.

The Tribunal dismissed her remitted appeal. It found that NAPTIP shelters could meet her and her child’s needs, that her trafficker had acted alone rather than as part of a gang, and alternatively that internal relocation would not be unduly harsh.

She challenged the Tribunal’s reliance on a contested NAPTIP email concerning shelter facilities and its requirement that she prove gang involvement. Although she and her child had since received indefinite leave to remain, the Court considered whether the country guidance and its headnote had imposed an unlawful burden on trafficking victims.

1. Appeal allowed unanimously. The Tribunal’s decision was set aside on both grounds and the matter was remitted to the Upper Tribunal for reconsideration.

2. On shelters, the Tribunal had rationally discounted the expert’s evidence on some separate matters, but that did not justify rejecting her evidence concerning NAPTIP facilities. Its conclusions materially relied on a contested NAPTIP email. The email author was not available for cross-examination, whereas availability for further cross-examination had been made a condition of receiving the expert’s responsive report. The presenting officer did not challenge that report, which was supported by recent objective material. The email was therefore a flimsy basis for rejecting the evidence about care services. In asylum and human-rights cases, particularly country-guidance cases, background evidence requires anxious scrutiny. The Court treated the concern expressed in CL(Vietnam) v Secretary of State for the Home Department [2008] EWCA Civ 1551 as apposite.

3. On gang involvement, the appeal remained suitable for decision despite the appellant’s grant of leave. Applying R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, there was a public-interest reason to correct an inaccurate country-guidance headnote which was being used in later cases. The true guidance required careful examination of the initial trafficking. In the absence of evidence of a sole trafficker, it indicated that trafficking was likely to have involved a collection of individuals.

4. The Tribunal instead required personal proof that a gang operated in Nigeria. That imposed an inappropriate additional burden. It also failed to account for preserved findings, the appellant’s accepted account of the trafficker’s network and associates, and uncontradicted objective evidence concerning syndicated gangs. Its finding that there was no evidence of gang involvement was consequently legally erroneous.

5. The alternative internal-relocation finding might have been infected by both errors and could not stand. Country guidance remains primarily a matter for the specialist tribunal. Carnwath LJ added that country-guidance determinations should identify their precise issues clearly, and that a headnote is not part of the determination and must accurately reflect it.

• Court of Appeal (Civil Division) — allowed the appeal, set aside the country-guidance determination and remitted the matter to the Upper Tribunal.
• Asylum and Immigration Tribunal — on remittal, dismissed the appellant’s appeal in PO(Trafficked Women) Nigeria CG [2009] UKAIT 00046.
• Court of Appeal — in January 2008, allowed an earlier appeal by consent, set aside Immigration Judge Grant’s determination and remitted the case while preserving specified findings of the original Immigration Judge.
• Asylum and Immigration Tribunal — Immigration Judge Grant had dismissed the asylum, humanitarian-protection and human-rights appeal in March 2007; Immigration Judge Malins had allowed it in October 2005.